RECONSTITUTED SERVICING AGREEMENT
THIS
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st
day of July, 2006, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the “Seller” or “Xxxxxx Brothers Holdings”), and GMAC MORTGAGE
CORPORATION, a Pennsylvania corporation (the “Servicer” or the “Company”),
having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, recites and
provides as follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”) acquired certain fixed rate,
conventional, first lien residential mortgage loans from the Servicer, which
mortgage loans were either originated or acquired by the Servicer pursuant
to
the Master Mortgage Loan Sale and Servicing Agreement dated as of June 1, 2005,
as amended as of August 16, 2005, and as further amended by that certain
Amendment Regulation AB dated as of March 21, 2006 (“Amendment Reg AB” and
collectively, the “Sale and Servicing Agreement”), which Sale and Servicing
Agreement is annexed as Exhibit B hereto.
WHEREAS,
pursuant to an Assignment and Assumption Agreement, dated July 1, 2006 (the
“Assignment and Assumption Agreement”), annexed as Exhibit E hereto, the Seller
acquired from the Bank all of the Bank’s right, title and interest in and to the
mortgage loans currently serviced under the Sale and Servicing Agreement and
assumed for the benefit of each of the Servicer and the Bank the rights and
obligations of the Bank as owner of such mortgage loans pursuant to the Master
Mortgage Loan Purchase Agreement.
WHEREAS,
the Seller has conveyed certain mortgage loans as identified on Exhibit C hereto
(the “Mortgage Loans”) to Structured Asset Securities Corporation, a Delaware
special purpose corporation (“SASCO”), which in turn has conveyed the Mortgage
Loans to U.S. Bank National Association, as trustee (the “Trustee”), pursuant to
a trust agreement, dated as of July 1, 2006 (the “Trust Agreement”), among the
Trustee, Aurora Loan Services LLC, as master servicer (“Aurora,” and, together
with any successor master servicer appointed pursuant to the provisions of
the
Trust Agreement, the “Master Servicer”), and SASCO.
WHEREAS,
the Mortgage Loans are currently being serviced by the Servicer for the Seller
pursuant to the Sale and Servicing Agreement.
WHEREAS,
the Seller desires that the Servicer continue to service the Mortgage Loans,
and
the Servicer has agreed to do so, subject to the rights of the Seller (with
the
consent of the Master Servicer) to terminate the rights and obligations of
the
Servicer hereunder as permitted under Section 10.02 of the Sale and Servicing
Agreement, as amended hereby and subject to the other conditions set forth
herein.
WHEREAS,
the Seller and the Servicer agree that the provisions of the Sale and Servicing
Agreement shall continue to apply to the Mortgage Loans, but only to the extent
provided herein and that this Agreement shall govern the Mortgage Loans for
so
long as such Mortgage Loans remain subject to the provisions of the Trust
Agreement and until the Transfer Date.
1
WHEREAS,
the Seller and the Servicer agree that if a successor servicer is appointed
pursuant to the terms of this Agreement, the Servicer shall no longer service
the Mortgage Loans and shall transfer servicing of the Mortgage Loans to the
successor servicer designated by the Seller herein.
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Mortgage Loans on behalf of
the
Trustee, and shall have the right under the conditions specified herein to
terminate for cause the rights and obligations of the Servicer under this
Agreement.
WHEREAS,
the Seller and the Servicer intend that each of the Master Servicer and the
Trustee is an intended third party beneficiary of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions.
Capitalized terms used and not defined in this Agreement, including Exhibit
A
hereto and any provisions of the Sale and Servicing Agreement incorporated
by
reference herein (regardless of whether such terms are defined in the Sale
and
Servicing Agreement), shall have the meanings ascribed to such terms in the
Trust Agreement.
2. Custodianship.
The
parties hereto acknowledge that U.S. Bank National Association will act as
custodian of the Mortgage Files for the Trustee pursuant to a Custodial
Agreement, dated July 1, 2006, between U.S. Bank National Association and the
Trustee.
3. Servicing.
The
Servicer agrees, with respect to the Mortgage Loans, to perform and observe
the
duties, responsibilities and obligations that are to be performed and observed
under the provisions of the Sale and Servicing Agreement, except as otherwise
provided herein and on Exhibit A hereto, and that the provisions of the Sale
and
Servicing Agreement, as so modified, are and shall be a part of this Agreement
to the same extent as if set forth herein in full.
4. Master
Servicing; Termination of Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the LXS 2006-12N Trust Fund (the “Trust Fund”) created pursuant to
the Trust Agreement, shall have the same rights as the Seller under the Sale
and
Servicing Agreement to enforce the obligations of the Servicer under the Sale
and Servicing Agreement and the term “Initial Owner” or “Owner” as used in the
Sale and Servicing Agreement in connection with any rights of the Initial Owner
or Owner shall refer to the Trust Fund or, as the context requires, the Master
Servicer acting in its capacity as agent for the Trust Fund, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in Section
9.01 of the Sale and Servicing Agreement. Notwithstanding anything herein to
the
contrary, in no event shall the Master Servicer assume any of the obligations
of
the Seller under the Sale and Servicing Agreement and in connection with the
performance of the Master Servicer’s duties hereunder, the parties and other
signatories hereto agree that the Master Servicer shall be entitled to all
of
the rights, protections and limitations of liability afforded to the Master
Servicer under the Trust Agreement.
2
5. Representations.
Neither
the Servicer nor the Master Servicer shall be obligated or required to make
any
representations and warranties regarding the characteristics of the Mortgage
Loans in connection with the transactions contemplated by the Trust Agreement
and issuance of the Certificates issued pursuant thereto. The Servicer hereby
restates as of the Closing Date the representations and warranties made in
Section 3.01.
6. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee
shall
be in writing and shall be deemed received or given when mailed first-class
mail, postage prepaid, addressed to each other party at its address specified
below or, if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender of such
notice. Each party may designate to the other parties in writing, from time
to
time, other addresses to which notices and communications hereunder shall be
sent.
All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx - Master Servicing, LXS 0000-00X
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
All
remittances required to be made to the Master Servicer under this Agreement
shall be made on a scheduled/scheduled basis to the following wire
account:
JPMorgan
Chase Bank
ABA#:
000-000-000
Account
Name: Aurora
Loan Services LLC, Master Servicing Payment Clearing
Account
Account
No.: 066-611059
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2006-12N
3
All
notices required to be delivered to the Trustee hereunder shall be delivered
to
the Trustee at the following address:
U.S.
Bank
National Association
One
Federal Street
Boston,
M.A. 02110
Attention: Corporate
Trust Services
Reference:
LXS
0000-00X
Telephone: (000)
000-0000
Telecopier: (000)
000-0000
All
notices required to be delivered to the Seller hereunder shall be delivered
to
the Seller at the following address:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx.xxx
With
a
copy to:
Dechert
LLP
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
All
notices required to be delivered to the Servicer hereunder shall be delivered
to
the Servicer at the following address:
GMAC
Mortgage Corporation
000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx Xxxx
Telephone: (000)
000-0000
Email:
xxxxx.xxxx@xxxxx.xxx
7. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES
TO
THE CONTRARY.
8. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
4
9. NIMS
Insurer.
In
addition to the terms and conditions set forth in this Agreement, any and all
rights of the Master Servicer and Trustee to receive notices from the Servicer
pursuant to this Agreement shall hereby be equally granted to the NIMS Insurer.
The Master Servicer or the Trustee shall notify the Servicer in writing of
the
name and address of the NIMS insurer and the name and telephone number of the
appropriate contact employee of the NIMS Insurer. For any and all obligations
of
the Servicer to obtain consent from the Master Servicer and the Trustee pursuant
to this Agreement, the Servicer must also obtain such consent from the NIMS
Insurer. Notwithstanding any other provision in this Agreement, the Trust Fund
shall hold harmless and indemnify the Servicer for any failure of the NIMS
Insurer to comply with the provisions of this Agreement. Notwithstanding any
provision herein to the contrary, the parties to this Agreement agree that
it is
appropriate, in furtherance of the intent of such parties as set forth herein,
that the NIMS Insurer receive the benefit of the provisions of this Agreement
as
an intended third party beneficiary of this Agreement to the extent of such
provisions. The Servicer shall have the same obligations to the NIMS Insurer
as
if it was a party to this Agreement, and the NIMS Insurer shall have the same
rights and remedies to enforce the provisions of this Agreement as if it was
a
party to this Agreement. The parties hereto agree to cooperate in good faith
to
amend this Agreement in accordance with the terms hereof to include such other
provisions as may be reasonably requested by the NIMS Insurer. Notwithstanding
the foregoing, all rights of the NIMS Insurer set forth in this Agreement shall
exist only so long as the NIM Securities issued pursuant to the NIMS Transaction
remain outstanding or the NIMS Insurer is owed amounts in respect of its
guarantee of payment on such NIM Securities.
“NIM
Security” shall mean any net interest margin security issued by an owner trust
or special purpose entity that is holding all rights, title and interest in
and
to the Class P or Class X Certificates issued by the Trust Fund.
“NIMS
Insurer” shall mean collectively, any insurance companies issuing a financial
guaranty insurance policy covering certain payments to be made on NIM Securities
pursuant to a NIMS Transaction.
“NIMS
Transaction” shall mean any transaction in which NIM Securities are secured, in
part, by the payments on the Class P or Class X Certificates issued by the
Trust
Fund.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
5
Executed
as of the day and year first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:
Name:
Xxxxx Xxxxxxx
Title:
Authorized Signatory
GMAC
MORTGAGE CORPORATION,
as
Servicer
By:
Name:
Title:
Acknowledged
By:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
Name: Xxxxxx
X.
Xxxxxx
Title:
Vice
President
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U.S.
BANK NATIONAL ASSOCIATION
as
Trustee and not individually
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By:
Name:
Title:
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EXHIBIT
A
Modifications
to the Sale and Servicing Agreement
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1.
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Unless
otherwise specified herein, any provisions of the Sale and Servicing
Agreement, including definitions, relating to Whole-Loan Transfers,
Pass-Through Transfers, Closing Dates, Cut-off Dates and First Remittance
Dates shall be disregarded. Unless otherwise specified herein, for
purposes of this Agreement, the exhibits to the Sale and Servicing
Agreement and all references to such exhibits shall also be
disregarded.
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2.
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The
definition of “Custodial Agreement” in Article I is hereby amended in its
entirety to read as follows:
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“Custodial
Agreement”
means
the Trust Agreement.
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3.
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The
definition of “Determination Date” in Article I is hereby amended in its
entirety to read as follows:
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“Determination
Date”
means
the 15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
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4.
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The
definition of “Due Period” in Article I is hereby amended in its entirety
to read as follows:
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“Due
Period”:
With
respect to each Remittance Date, the period commencing on the second day of
the
month immediately preceding the month of such Remittance Date and ending on
the
first day of the month of such Remittance Date.
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5.
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The
definition of “Eligible Depository Institution” in Article I is hereby
amended in its entirety to read as
follows:
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“Eligible
Depository Institution”:
Any of
(i) a federal or state-chartered depository institution the accounts of which
are insured by the FDIC and whose commercial paper, short-term debt obligations
or other short-term deposits are rated at least “A-1+” by S&P, or whose
long-term unsecured debt obligations are rated at least “AA-” by S&P if the
deposits are to be held in the account for no more than 365 days or whose
commercial paper, short-term debt obligations, demand deposits, or other
short-term deposits are rated at least “A-2” by S&P, if the amounts on
deposit are to be held in the account for no more than 30 days and are not
intended to be used as credit enhancement, or (ii) the corporate trust
department of a federal or state-chartered depository institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the
Code
of Federal Regulations Section 9.10(b), which, in either case, has corporate
trust powers, acting in its fiduciary capacity, or (iii) Xxxxxx Brothers Bank,
FSB, a federal savings bank.
A-1
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6.
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The
definition of “Eligible Investments” in Article I is hereby amended in its
entirety to read as follows:
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“Eligible
Investments”:
Any
one or more of the obligations and securities listed below which investment
provides for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided, however, that securities issued by any particular corporation will
not
be Eligible Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation
and
held as part of the Trust Fund to exceed 20% of the sum of the aggregate
principal balance of the Mortgage Loans; provided, further, that such securities
will not be Eligible Investments if they are published as being under review
with negative implications from either Rating Agency;
A-2
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then-current rating by each Rating Agency of any of the Certificates and has
a
short term rating of at least “A-1” or its equivalent by each Rating Agency.
Such investments in this subsection (viii) may include money market mutual
funds
or common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time, provided, however, that no such instrument shall be an Eligible Investment
if such instrument evidences either (1) a right to receive only interest
payments with respect to the obligations underlying such instrument or
(2) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with respect
to such instrument provide a yield to maturity of greater than 120% of the
yield
to maturity at par of such underlying obligations.
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7.
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The
definition of “Xxxxxx Mae” is hereby added to Article I to immediately
follow the definition of “GMAC” and to read as
follows:
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“Xxxxxx
Xxx”:
The
Government National Mortgage Association, or any successor thereto.
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8.
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The
definition of “Mortgage Loan” in Article I is hereby amended in its
entirety to read as follows:
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A-3
“Mortgage
Loan”:
An
individual Mortgage Loan which has been purchased from the Company by Xxxxxx
Brothers Holdings and is subject to this Agreement being identified on the
Mortgage Loan Schedule to this Agreement, which Mortgage Loan includes without
limitation the Mortgage Loan documents, the monthly reports, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
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9.
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The
definition of “Mortgage Loan Schedule” in Article I is hereby amended in
its entirety to read as follows:
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“Mortgage
Loan Schedule”:
The
schedule of Mortgage Loans attached as Exhibit C to this Agreement setting
forth
certain information with respect to the Mortgage Loans purchased from the
Company by Xxxxxx Brothers Holdings pursuant to the Sale and Servicing
Agreement.
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10.
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The
definition of “P&I Advance” in Article I is hereby amended in its
entirety to read as follows:
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“P&I
Advance”:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate) that was due on the Mortgage Loan on the
Due
Date in the related Due Period, and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the subject of
a
previous P&I Advance, but only to the extent that such amount is expected,
in the reasonable judgment of the Company, to be recoverable from collections
or
other recoveries in respect of such Mortgage Loan. To the extent that the
Company determines that any such amount is not recoverable from collections
or
other recoveries in respect of such Mortgage Loan, such determination shall
be
evidenced by a certificate of a Servicing Officer delivered to the Master
Servicer setting forth such determination and the procedures and considerations
of the Company forming the basis of such determination, which shall include
a
copy of any broker’s price opinion and any other information or reports obtained
by the Company which may support such determinations.
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11.
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The
definition of “Prepayment Interest Shortfall” in Article I is hereby
amended in its entirety to read as
follows:
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“Prepayment
Interest Shortfall”:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied to
such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net the related Servicing Fee for Principal Prepayments
in
full) that would have accrued on the amount of such Principal Prepayment during
the period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day immediately preceding such
Due Date, inclusive.
A-4
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12.
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The
definition of “Qualified GIC” in Article I is hereby added to immediately
follow the definition of “Qualified Appraiser” and to read as
follows:
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“Qualified
GIC”:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Custodial Account and insuring a minimum, fixed or floating rate
of
return on investments of such funds, which contract or surety bond
shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide
that the Company may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then-current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Company, the Company shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Company’s interest therein shall be transferable to any successor
Company or the Master Servicer hereunder; and
(e) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Custodial Account, as the case may be, not later than the Business Day
prior to any Determination Date.
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13.
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The
definition of “Servicing Fee” in Article I is hereby amended and restated
in its entirety to read as follows:
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Servicing
Fee:
An
amount equal to one-twelfth the product of (a) 0.25% per annum (the “Servicing
Fee Rate”) and (b) the outstanding principal balance of the Mortgage Loan. The
Servicing Fee is payable solely from the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds) of such
A-5
Monthly
Payment collected by the Company or as otherwise provided under this
Agreement.
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14.
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Section
3.03 (Repurchase and Substitution) is hereby amended
by:
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(i)
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adding
the phrase “and the Master Servicer” after the phrase “inure to the
benefit of the Owner” in the first paragraph of such Subsection;
and
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(iii)
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adding
the words “each of” after the word “indemnify” and the phrase “and the
Master Servicer (and each of their respective directors, officers,
employees and agents)” after the words “the Owner” in the first sentence
of the fourth paragraph of such
Subsection.
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15.
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Section
4.01 (Company to Act as Servicer) is hereby amended and restated
in its
entirety to read as follows:
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From
the
date of origination of the related Mortgage Loans to the related Closing Date,
the Company shall have serviced the related Mortgage Loans in accordance with
Customary Servicing Procedures. From and after the related Closing Date, the
Company, as an independent contractor, shall service and administer the Mortgage
Loans pursuant to this Agreement and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing
Practices.
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Owner, provided,
however, that (unless the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Company, imminent and the
Company has obtained the prior written consent of the Owner) the Company shall
not permit any modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, defer or forgive the payment of principal or
interest, reduce or increase the outstanding principal balance (except for
actual payments of principal) or change the final maturity date on such Mortgage
Loan. With respect to a Reconstitution Agreement, in the event of any such
modification which permits the deferral of interest or principal payments on
any
Mortgage Loan, the Company shall, on the Business Day immediately preceding
the
Remittance Date in any month in which any such principal or interest payment
has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 4.04, the difference between (a) such month’s principal
and one month’s interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. With the approval of the Master Servicer, the Company shall be
entitled to reimbursement for such advances only to the same extent as for
P&I Advances made pursuant to Section 5.03 hereunder. Without limiting the
generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and the
Owner, all instruments of satisfaction or cancellation, or of partial or full
release, discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Company, the Owner shall furnish the Company with any powers
of
attorney and other documents necessary or appropriate to enable the Company
to
carry out its servicing and administrative duties under this
Agreement.
A-6
Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Company shall forward to the Master Servicer copies
of
any documents evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause any REMIC created under the
Trust
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under Section 860F(a) or Section 860G(d) of the Code.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Customary Servicing Procedures
where such practices do not conflict with the requirements of this Agreement,
and the Owner’s reliance on the Company.
Absent
written consultation and approval by the Owner, as specified in this Section
4.01, the Company may take actions relative to the servicing and administration
of the Mortgage Loans that are consistent with Customary Servicing
Procedures.
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16.
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The
parties hereto acknowledge that references to the “Owner” in the first
paragraph of Section 4.02 shall refer to the Master Servicer, except
that
the expense of any environmental inspection or review at the request
of
the Master Servicer shall be an expense of the Trust
Fund.
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17.
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The
parties hereto acknowledge that (i) the Custodial Account referenced
in
Section 4.04 shall be titled “GMAC Mortgage Corporation in trust for U.S.
Bank National Association, as trustee for LXS 2006-12N” and (ii)
references to the Cutoff Date shall mean the close of business on
July 1,
2006.
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A-7
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18.
|
Section
4.04 (Establishment of Custodial Account; Deposits in Custodial Account”
shall be amended by replacing the phrase “on a daily basis” in the first
line of the second paragraph of such Section with the phrase “within two
Business Days after receipt”.
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19.
|
The
parties hereto acknowledge that (i) the Escrow Account referenced
in
Section 4.06 shall be titled “GMAC Mortgage Corporation in trust for U.S.
Bank National Association, as trustee for LXS
2006-12N.”
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20.
|
Section
4.09 (Transfer of Accounts) is hereby amended by adding the following
sentence at the end of such
Section:
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The
Company shall give notice to the Master Servicer of any change in the location
of the Custodial Account no later than 30 days after any such transfer is made
and deliver to the Master Servicer a certification notice in the form of Exhibit
B or Exhibit C, as applicable, with respect to such Eligible
Account.
21. Section
4.14 (Title,
Management and Disposition of REO Property) is hereby amended by (i) adding
two
new paragraphs after the second paragraph thereof to read as
follows:
In
the
event that the Trust Fund acquires any REO Property in connection with a default
or imminent default on a Mortgage Loan, the Company shall dispose of such REO
Property not later than the end of the third taxable year after the year of
its
acquisition by the Trust Fund unless the Company has applied for and received
a
grant of extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a longer period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the Company has
received such an extension, then the Company shall continue to attempt to sell
the REO Property for its fair market value for such period longer than three
years as such extension permits (the “Extended Period”). If the Company has not
received such an extension and the Company is unable to sell the REO Property
within the period ending 3 months before the end of such third taxable year
after its acquisition by the Trust Fund or if the Company has received such
an
extension, and the Company is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the Company shall,
before the end of the three-year period or the Extended Period, as applicable,
(i) purchase such REO Property at a price equal to the REO Property’s fair
market value or (ii) auction the REO Property to the highest bidder (which
may
be the Company) in an auction reasonably designed to produce a fair price prior
to the expiration of the three-year period or the Extended Period, as the case
may be. The Trustee shall sign any document or take any other action reasonably
requested by the Company which would enable the Company, on behalf of the Trust
Fund, to request such grant of extension.
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Company has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such
taxes.
A-8
(ii)
adding the following to the end of such Section:
Prior
to
acceptance by the Company of an offer to sell any REO Property, the Company
shall notify the Master Servicer of such offer in writing which notification
shall set forth all material terms of said offer (each a “Notice of Sale”). The
Master Servicer shall be deemed to have approved the sale of any REO Property
unless the Master Servicer notifies the Company in writing, within five (5)
days
after its receipt of the related Notice of Sale, that it disapproves of the
related sale, in which case the Company shall not proceed with such
sale.
22. Section
5.02 (Statements
to the Owner) is hereby amended and restated in its entirety as
follows:
Section
5.02 Statements
to the Master Servicer.
The
Company shall deliver or cause to be delivered to the Master Servicer executed
copies of the custodial and escrow account letter agreements pursuant to
Sections 4.04 and 4.06 within 30 days of the Closing Date.
Not
later
than the tenth calendar day of each month (or, if such tenth day is not a
Business Day, the following Business Day), the Company shall furnish to the
Master Servicer (a) a monthly remittance and reporting format in the format
currently being used and mutually agreed upon by the Company and by the Master
Servicer as to the accompanying remittance and the period ending on the last
day
of the preceding Determination Date and (b) all such information required
pursuant to clause (a) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer.
Beginning
with calendar year 2007, the Company shall prepare and file any and all tax
returns, information statements or other filings for the portion of the tax
year
2006 and the portion of subsequent tax years for which the Company has serviced
some or all of the Mortgage Loans hereunder as such returns, information
statements or other filings are required to be delivered to any governmental
taxing authority or to the Master Servicer pursuant to any applicable law with
respect to the Mortgage Loans and the transactions contemplated hereby. In
addition, the Company shall provide the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Master Servicer to prepare
the Trust Fund’s federal income tax return as the Master Servicer may reasonably
request from time to time.
A-9
23. Section
5.03 (P&I
Advances by the Company) is hereby amended and restated in its entirety as
follows:
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and which
were delinquent at the close of business on the immediately preceding
Determination Date or which were deferred pursuant to Section 4.01. Any amounts
held for future distribution and so used to make P&I Advances shall be
replaced by the Company by deposit in the Custodial Account on or before any
future Remittance Date if funds in the Custodial Account on such Remittance
Date
shall be less than payments to the Trust Fund required to be made on such
Remittance Date. The Company’s obligation to make such P&I Advances as to
any Mortgage Loan will continue through the last Monthly Payment due prior
to
the payment in full of the Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan unless the Company deems such
P&I Advances to be unrecoverable, as evidenced by an Officer’s Certificate
of the Company delivered to the Master Servicer.
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24.
|
Section
6.03 (Servicing Compensation) is hereby amended by adding the following
sentence at the end of such
Section:
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The
Company shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
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25.
|
Section
6.04 (Annual Statement as to Compliance) is hereby amended by (i)
replacing “Owner” with “Xxxxxx Brothers Holdings and Master Servicer”,
(ii) replacing “March 31 of each year” with “the 15th
day of March of each year” and (iii) replacing “March 31, 2004” with
“March 15, 2006”.
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26.
|
Section
6.05 (Annual Independent Public Accountants’ Servicing Report) is hereby
deleted in its entirety.
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27.
|
A
new Section 6.09 is hereby added to this Agreement to read as
follows:
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(a) By
March
15th of each year (or if not a Business Day, the immediately preceding Business
Day), commencing with March 15, 2007, an officer of the Company shall execute
and deliver an Officer’s Certificate in the form of Exhibit D attached hereto,
signed by an officer of the Company, to the Master Servicer and the Depositor
for the benefit of such Master Servicer and such Depositor and their respective
officers, directors and affiliates.
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28.
|
Sections
8.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
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A-10
The
Company shall indemnify the Trust Fund, the Trustee and the Master Servicer
and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and any other costs, fees and expenses that any of such parties
may sustain directly resulting from the failure of the Company to perform its
duties and service the Mortgage Loans in material compliance with the terms
of
this Agreement. The Company immediately shall notify Xxxxxx Brothers Holdings,
the Master Servicer and the Trustee or any other relevant party if a claim
is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the indemnified party) the defense
of
any such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which
may
be entered against it or any of such parties in respect of such claim. The
Company shall follow any written instructions received from the Trustee in
connection with such claim. The Trustee, from the assets of the Trust Fund,
promptly shall reimburse the Company for all amounts advanced by it pursuant
to
the preceding sentence except when the claim is in any way related to the
failure of the Company to service and administer the Mortgage Loans in material
compliance with the terms of this Agreement.
The
Trust
Fund shall indemnify the Company and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Company may sustain in any way related to the failure of the Trustee
or
the Master Servicer to perform its duties in compliance with the terms of this
Agreement.
In
the
event a dispute arises between an indemnified party and the Company with respect
to any of the rights and obligations of the parties pursuant to this Agreement
and such dispute is adjudicated in a court of law, by an arbitration panel
or
any other judicial process, then the losing party shall indemnify and reimburse
the winning party for all attorney’s fees and other costs and expenses related
to the adjudication of said dispute.
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29.
|
Section
9.01 (Events of Default) is hereby amended as
follows:
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(a) Amending
Subsection 9.01(vii) in its entirety to read as follows: “the Company at any
time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved servicer, and the Master
Servicer has not terminated the rights and obligations of the Company under
this
Agreement and replaced the Company with a Xxxxxx Mae or Xxxxxxx Mac approved
servicer within 30 days after the absence of such approval; or”
(b) Replacing
the last paragraph thereof with the following:
A-11
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in a successor Company appointed by
the
Xxxxxx Brothers Holdings and the Master Servicer. Upon written request from
the
Seller, the Company shall prepare, execute and deliver to the successor entity
designated by the Seller any and all documents and other instruments, place
in
such successor’s possession all Servicing Files, and do or cause to be done all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Company’s sole
expense. The Company shall cooperate with Xxxxxx Brothers Holdings and the
Master Servicer and such successor in effecting the termination of the Company’s
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Company to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
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30.
|
The
parties hereto acknowledge that the word “Owner” in Section 9.02 (Waiver
of Defaults) shall refer to the “Master Servicer with the prior consent of
the Trustee.”
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31.
|
Section
10.02 (Termination Without Cause) is hereby amended by replacing
the first
paragraph thereof with the following
paragraphs:
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Section
10.02 Termination
Without Cause.
This
Agreement shall terminate upon: (i) the later of (a) the distribution of the
final payment or liquidation proceeds on the last Mortgage Loan to the Trust
Fund (or advances by the Company for the same), and (b) the disposition of
all
REO Property acquired upon foreclosure of the last Mortgage Loan and the
remittance of all funds due hereunder, or (ii) mutual consent of the Company,
Xxxxxx Brothers Holdings and the Master Servicer in writing or (iii) at the
sole
option of the Xxxxxx Brothers Holdings, without cause, upon 30 days written
notice. Any such notice of termination shall be in writing and delivered to
the
Company by registered mail to the address set forth at the beginning of this
Agreement. The Master Servicer, the Trustee and the Company shall comply with
the termination procedures set forth in Article X.
A-12
In
connection with any such termination referred to in clause (ii) above, Xxxxxx
Brothers Holdings will be responsible for reimbursing the Company for all
unreimbursed out-of-pocket Servicing Advances within 15 Business Days following
the date of termination and other reasonable and necessary out-of-pocket costs
associated with any transfer of servicing.
In
connection with any such termination referred to in clause (iii) above, Xxxxxx
Brothers Holdings will be responsible for paying a sum, as liquidated damages,
in an amount equal to (I) two percent (2%) of the aggregate Assumed Principal
Balance of the Mortgage Loans (as defined herein) if such written notice is
received by the Company on or before the Business Day five years from the date
such Mortgage Loans were sold by the Company to Xxxxxx Brothers Holdings or
(II)
one percent (1%) of the aggregate Assumed Principal Balance of the Mortgage
Loans if such written notice is received by the Company after the Business
Day
five years from the date such Mortgage Loans were sold by the Company to Xxxxxx
Brothers Holdings (either amount shall be referred to as “Liquidated
Damages”).
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32.
|
Section
11.01 (Successor to the Company) is hereby amended in its entirety
to read
as follows:
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Simultaneously
with the termination of the Company’s responsibilities and duties under this
Agreement pursuant to Sections 8.03, 9.01 or 10.01(a)(ii), the Master Servicer
shall, in accordance with the provisions of the Trust Agreement (i) succeed
to
and assume all of the Company’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor meeting the eligibility
requirements of this Agreement and (iii) and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Company
under this Agreement with the termination of the Company’s responsibilities,
duties and liabilities under this Agreement. Any successor to the Company that
is not at that time a Servicer of other mortgage loans for the Trust Fund shall
be subject to the approval of the Master Servicer, Xxxxxx Brothers Holdings,
the
Trustee and each Rating Agency (as such term is defined in the Trust Agreement).
Unless the successor servicer is at that time a servicer of other mortgage
loans
for the Trust Fund, each Rating Agency must deliver to the Trustee a letter
to
the effect that such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the Certificates.
In connection with such appointment and assumption, the Master Servicer or
Xxxxxx Brothers Bank, as applicable, may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it
and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted the Company under this Agreement. In the event
that the Company’s duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Company shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof with
the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or
removal of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 11.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Article III shall be applicable to the Company notwithstanding
any such resignation or termination of the Company, or the termination of this
Agreement.
A-13
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Company shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination. The Company shall cooperate with the Trustee and
the
Master Servicer, as applicable, and such successor in effecting the termination
of the Company’s responsibilities and rights hereunder and the transfer of
servicing responsibilities to the successor Servicer, including without
limitation, the transfer to such successor for administration by it of all
cash
amounts which shall at the time be credited by the Company to the Custodial
Account or any Escrow Account or thereafter received with respect to the
Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Company and the Master Servicer an instrument (i) accepting
such appointment, wherein the successor shall make an assumption of the due
and
punctual performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Sections
10.01 or 10.02 shall not affect any claims that the Master Servicer or the
Trustee may have against the Company arising out of the Company’s actions or
failure to act prior to any such termination or resignation.
Within
three (3) Business Days of the appointment of a successor servicer, the Company
shall deliver to the successor servicer the funds in the Custodial Account
and
Escrow Account and all Mortgage Loan Documents and related documents and
statements held by it hereunder and the Company shall account for all funds
and
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Company.
A-14
Upon
a
successor’s acceptance of appointment as such, the Company shall notify the
Trustee and Master Servicer of such appointment in accordance with the notice
procedures set forth herein.
Except
as
otherwise provided in this Agreement, all reasonable costs and expenses incurred
in connection with any transfer of servicing hereunder (whether as a result
of
termination or removal of the Company or resignation of the Company or
otherwise), including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or of the
Master Servicer in assuming the responsibilities of the Company hereunder,
or of
transferring the Servicing Files and the other necessary data to the successor
servicer shall be paid by the terminated, removed or resigning Company from
its
own funds without reimbursement.
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33.
|
A
new Section 11.14 is hereby added to read as
follows:
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Section
11.14 Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer, the Depositor and the Trustee receive the
benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The Company
shall have the same obligations to the Master Servicer, the Depositor and the
Trustee as if they were parties to this Agreement, and the Master Servicer,
the
Depositor and the Trustee shall have the same rights and remedies to enforce
the
provisions of this Agreement as if they were parties to this Agreement. The
Company shall only take direction from the Master Servicer (if direction by
the
Master Servicer is required under this Agreement) unless otherwise directed
by
this Agreement. Notwithstanding the foregoing, all rights and obligations of
the
Master Servicer, the Depositor and the Trustee hereunder (other than the right
to indemnification) shall terminate upon termination of the Trust Agreement
and
of the Trust Fund pursuant to the Trust Agreement.
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34.
|
Section
2(a) of
Amendment Reg AB
(Intent of the Parties; Reasonableness) is hereby amended as
follows:
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(a) The
first paragraph of such subsection is amended by (1) replacing the words “the
Purchaser and any Depositor” with “the Trust Fund, the Depositor, the Trustee
and the Master Servicer” and (2) by replacing the words “the Purchaser or any
Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master
Servicer”; and
(b) The
second paragraph of such subsection is amended by (1) replacing the words
“Neither the Purchaser nor any Depositor” with “None of the Trust Fund, the
Depositor, the Trustee and the Master Servicer,” (2) by replacing the words “the
Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or
the Master Servicer” in each instance, (3) by replacing the words “the Purchaser
to deliver to the Purchaser (including any of its assignees or designees) and
any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master
Servicer to deliver to such party (including any of its assignees or
designees),” and (4) by replacing the words “the Purchaser or such Depositor”
with “the Trust Fund, the Depositor, the Trustee or the Master Servicer.”
A-15
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35.
|
Section
2(b) of
Amendment Reg AB
(Additional Representations and Warranties of the Company) is hereby
amended as follows:
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(a) by
replacing the words “the Purchaser and to any Depositor” with “the Trust Fund,
the Depositor, the Trustee and the Master Servicer” in each
instance;
(b) by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
(c) by
replacing the words “the Purchaser or such Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
and
(d) by
replacing the words “by the related Depositor” with “by the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance.
(e) by
replacing in its entirety the words in subsection (vii) of Section (b)(i) of
Amendment Reg AB with the words “there are no affiliations, relationships or
transactions of a type described in Item 1119 of Regulation AB relating to
the
Company or any Subservicer with respect to any party listed on Exhibit F
hereto.”
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36.
|
Section
2(c) (Information to Be Provided by the Company) is hereby amended
as
follows:
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(a) by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
(b) by
replacing the words “the Purchaser and such Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance;
(c) by
replacing the words “the Purchaser and any Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance;
(d) by
replacing the words “the Purchaser or Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
(e) by
replacing the words “the Purchaser or the Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
and
A-16
(f) by
replacing the words “the Purchaser or such Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance.
(g) by
replacing the words in subsection
(D) of Section 2(c) of Amendment
Reg AB with
the words “a description of any affiliation or relationship between the Company,
each Subservicer and any of the parties listed on Exhibit F
hereto.”
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37.
|
Section
2(d) of Amendment Reg AB (Servicer Compliance Statement) is hereby
amended
by replacing the words “the Purchaser and the Depositor” and the words
“the
Purchaser and such Depositor”
with “the
Trust Fund, the Depositor, the Trustee and the Master Servicer”
in each instance.
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38.
|
Section
2(e) of Amendment Reg AB (Report on Assessment of Compliance and
Attestation) is hereby amended as
follows:
|
(a) the
first paragraph after subparagraph (D) of such section is hereby amended by
(1)
replacing the words “Neither the Purchaser nor any Depositor” with “None of the
Trust Fund, the Depositor, the Trustee and the Master Servicer” and (2)
replacing the words “unless a Depositor” with “unless such party”;
(b) by
replacing the words “each
of
the Servicing Criteria specified on a certification substantially in the form
of
Exhibit B hereto delivered to the Purchaser concurrently with the execution
of
this Agreement”
in both instances with “all of the Servicing Criteria specified on Exhibit B
hereto;”
(c) by
replacing the words “the Purchaser and any Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance;
(d) by
replacing the words “the Purchaser and such Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance;
(e) by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
and
(f) by
replacing the words “the Purchaser, any Depositor and any other Person” with
“the Trust Fund, the Depositor, the Trustee, the Master Servicer and any other
Person” in each instance.
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39.
|
Section
2(f) of
Amendment Reg AB
(Use of Subservicers and Subcontractors) is hereby amended as
follows:
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(a) by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
(b) by
replacing the words “the Purchaser and any Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance;
and
A-17
(c) by
replacing the words “the Purchaser and such Depositor” with “the Trust Fund, the
Depositor, the Trustee and the Master Servicer” in each instance.
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40.
|
Section
2(g) (Indemnification) is hereby amended as
follows:
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(a) by
replacing the words “the Purchaser, any Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
(d) by
replacing the words “the Purchaser or Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
and
(c) by
replacing the words “Neither the Purchaser nor any Depositor” with “None of the
Trust Fund, the Depositor, the Trustee and the Master Servicer” in each
instance.
|
41.
|
Exhibit
B of Amendment Reg AB (Servicing Criteria to be Addressed in Assessment
of
Compliance) is hereby replaced in its entirety with the
following:
|
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
A-18
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
A-19
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
A-20
EXHIBIT
B
Sale
and
Servicing Agreement
See
Exhibit 99.5
B-1
EXHIBIT
C
Mortgage
Loan Schedule
[Intentionally
Omitted]
C-1
EXHIBIT
D
[Reserved]
D-1
EXHIBIT
E
Assignment
and Assumption Agreement
[Intentionally
Omitted]
E-1
EXHIBIT
F
TRANSACTION
PARTIES
Trustee:
U.S. Bank National Association
Securities
Administrator: N/A
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: N/A
PMI
Insurer: N/A
Interest
Rate Swap Counterparty: IXIS Financial Products Inc.
Interest
Rate Cap Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicers:
Aurora Loan Services LLC, Countrywide Home Loans Servicing LP, GMAC Mortgage
Corporation, IndyMac Bank, F.S.B and Residential Funding
Corporation
Originators:
Xxxxxx Brothers Bank, FSB, American Home Mortgage Corp., American Sterling
Bank,
Countrywide Home Loans, Inc., First National Bank of Nevada, GMAC Mortgage
Corporation, GreenPoint Mortgage Funding, Inc., IndyMac Bank, F.S.B, Pinnacle
Financial Corporation, Platinum Community Bank, F.S.B. and Residential Funding
Corporation
Custodian:
Deutsche Bank National Trust Company, LaSalle Bank National Association, U.S.
Bank National Association and Xxxxx Fargo Bank, N.A.
Seller:
Xxxxxx Brothers Holdings Inc.
F-1
